State of North Dakota v. Timothy John Deviley

STATE OF NORTH DAKOTA,PLAINTIFF AND APPELLEEv.TIMOTHY JOHN DEVILEY, DEFENDANT AND APPELLANTSTATE OF NORTH DAKOTA,PLAINTIFF AND APPELLEEv.RYAN STEVEN LEE, DEFENDANT AND APPELLANT

Appeals from the District Court of Morton County, South Central Judicial District, the Honorable Robert O. Wefald, Judge.

The opinion of the court was delivered by: Sandstrom, Justice.

N.D. Supreme Court

State v. Deviley, 2011 ND 182

This opinion is subject to petition for rehearing. [Go to Documents]

[Download as WordPerfect] Dissent filed.

AFFIRMED.

Opinion of the Court by Sandstrom, Justice.

[¶1] Timothy Deviley and Ryan Lee appeal from the criminal judgments entered on their conditional guilty pleas for possession of marijuana with intent to deliver and reserving the right to appeal the order denying their motions to suppress evidence. Deviley and Lee argue they were seized in violation of the Fourth Amendment because they were detained without reasonable and articulable suspicion they were engaged in criminal activity. Lee further argues the length of time for the drug dog to arrive created a de facto arrest. Lee also argues the district court erred by denying a motion to reduce the charge against him because of inconsistent statutes. We affirm the district court's order denying the motions to suppress evidence, concluding there was reasonable and articulable suspicion the defendants were engaged in criminal activity, and there was no unreasonable delay creating a de facto arrest. Further, we conclude Lee was correctly charged with a Class A felony under N.D.C.C. § 19-03.1-23.1(1)(c)(11), and affirm the criminal judgments.

I

[¶2] In November 2010, Lee was driving a pickup on Interstate 94 when he was stopped for speeding by a North Dakota Highway Patrol officer. Deviley was a passenger in the pickup. The officer testified he asked Lee to come to the patrol vehicle while he identified Lee and checked for outstanding warrants.

[¶3] During this time, the officer questioned Lee about his travel plans and about Deviley. The officer testified in his deposition that there were numerous things in this conversation that made him suspicious:

Some of the suspicious things were he's riding with this person that he says is a friend of his. He doesn't know how he really got out there, how he came to be with this person. He doesn't know if he goes to school in Minneapolis. We're talking about a road trip from the West Coast to North Dakota with a friend of his, and he knows very little about him or how he got to be with him. According to the officer, Lee was unusually nervous, which he exhibited by "[t]he way he was acting, moving, breathing, the pulse, the way he answered questions, the shaky voice . . .."

[¶4] The officer testified to further observations that aroused his suspicion. While talking with Deviley and Lee, he noticed an open energy drink in the vehicle and noted the men were carrying a minimal amount of luggage. The latter observation was at odds with Lee's stated plans of coming from California to spend the winter in Minnesota with his parents. Additionally, the officer testified that while Lee waited in the patrol vehicle, he approached the pickup and questioned Deviley about their travel plans. Deviley's stated plans were inconsistent with what Lee had told the officer. According to the officer, Lee had told him their destination was Minnesota, but Deviley told him he was going to get dropped off in Wisconsin.

[¶5] The officer testified that after speaking with Deviley, he returned to his patrol car and told Lee he was "good to go." He then asked, however, if he could search Lee's pickup. Lee refused, but in a manner which the officer again characterized as "nervous." The officer testified, "I told Mr. Lee due to his nervousness, his story, I'd be calling a canine to the scene." Deviley and Lee were told not to enter the pickup until after the canine unit had arrived and completed its task. After a twenty-minute wait, an officer arrived with the canine, and according to both officers, indicated the scent of controlled substances. The officers inspected the various compartments in the pickup and found ninety-five pounds of marijuana.

[¶6] Deviley and Lee each were charged with a Class A felony for possession of marijuana with intent to deliver. Both men moved to suppress the marijuana evidence, arguing they were illegally seized because the officer lacked reasonable and articulable suspicion that they were engaged in criminal activity. In the district court, they argued the seizure became a de facto arrest because they were not free to leave and twenty minutes was an unreasonable length of time to be detained while waiting for the canine unit to arrive. The district court denied their motions to suppress. Deviley and Lee moved to reduce the charges against them, arguing the charges were based upon inconsistent statutes. The district court denied the motions to reduce the charges. Deviley and Lee then conditionally pled guilty to the charges, reserving the right to appeal the district court's denial of their motions to suppress the marijuana evidence. Additionally, Lee appeals the court's denial of his motion to reduce the charge against him.

II

[¶7] The Fourth Amendment of the United States Constitution protects individuals from unreasonable searches and seizures. Deviley and Lee argue they were seized without reasonable suspicion of criminal activity after Lee was issued a warning ticket for speeding and the district court erred in denying their motions ...

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